Why It’s Critical to Have a Valid Will – Before It’s Too Late
The person who creates and signs a Will is known as a testator. In order to make a valid Will, the testator must have what’s called testamentary capacity — that is, the legal and mental ability to understand what they’re signing and why.
Unfortunately, certain medical conditions can rob someone of that capacity. One of the most common is Alzheimer’s Disease. While many people in their 30s, 40s, and even 50s may think dementia is only a concern for the very elderly, early symptoms often appear gradually and may be dismissed as just “getting older” or being forgetful.
But the reality is sobering. According to the Alzheimer’s Association, 1 in 3 seniors in the U.S. dies with Alzheimer’s or another form of dementia. Back in 2015, an estimated 5.3 million Americans were living with Alzheimer’s — a number that continues to rise.
That’s why regularly reviewing and updating your estate plan is so important. Alzheimer’s is currently the only one of the top 10 causes of death that has no cure, no way to prevent it, and no treatment to slow it down.
So what happens if you begin to show signs of dementia before you’ve signed your Will? Is it too late?
Not necessarily. It depends on whether you still have testamentary capacity at the time of signing. Just like cancer, dementia has stages — and early-stage dementia does not always mean a person is legally incapacitated. To be considered mentally competent to sign a Will, you must be able to:
- Understand what you own – You need a clear sense of your assets and their value.
- Identify your natural heirs – You should know who would typically inherit from you, like close family members.
- Understand what a Will does – You must grasp that you’re deciding how your property will be distributed after death.
- Form a coherent plan – You need to show you can logically put this information together to create a meaningful estate plan.
Keep in mind, if your family is dissatisfied with the contents of your Will, they may challenge it in court, arguing that you weren’t of sound mind when you signed it. If a court agrees, your Will could be thrown out — and either a previous version would be enforced, or your estate would be distributed under your state’s intestacy laws (which may not reflect your wishes).
To avoid this outcome, the safest move is to work with an experienced estate planning attorney. They can help ensure your Will is valid, properly executed, and protected from future legal challenges — giving you peace of mind and protecting your legacy.
These legal topics are provided to you by the President of QMC, Mark Easley. While QMC does not engage in the practice of law, Mr. Easley has practiced estate planning and elder law for over 30 years and is currently the principal at the Elder and Estate Planning Law Firm of St. Louis.